People v. James

2017 IL App (1st) 143036

82 N.E.3d 548

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Samuel JAMES, Defendant-Appellant.

No. 1-14-3036.

Appellate Court of Illinois, First District, FIRST DIVISION.

Filed May 22, 2017

Rehearing denied June 20, 2017

Michael J. Pelletier, Patricia Mysza, and Bradley Jarka, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Eric Leafblad, Miles J. Keleher, and Jesse B. Guth, Assistant State's Attorneys, of counsel), for the People.

OPINION

JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 Defendant Samuel James was charged with various drug- and firearm-related offenses resulting from events occurring on November 28, 2012. Following a jury trial, Mr. James was found guilty of the unlawful and knowing possession of benzylpiperazine (BZP), a controlled substance ( 720 ILCS 570/402 (West 2012) ); aggravated unlawful use of a weapon (AUUW), for carrying a firearm without a valid Firearm Owner's Identification (FOID) card ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2012)); and armed violence, based on his possession of the BZP while armed with a firearm ( 720 ILCS 5/33A-2(a) (West 2012)). Mr. James was sentenced, on the charge of armed violence, to 15 years of imprisonment, followed by 3 years of mandatory supervised release.

¶ 2 On appeal, Mr. James argues that (1) the trial court abused its discretion by failing to inquire during voir dire regarding potential jurors' feelings about guns; (2) statements made by the prosecutor during closing and rebuttal arguments denied Mr. James a fair trial; (3) under the one-act, one-crime rule, Mr. James's convictions for possession of a controlled substance and AUUW should be vacated; and (4) the trial court erroneously failed to order 303 days of presentence credit for sanitation work that Mr. James completed while he was incarcerated.

¶ 3 For the reasons that follow, we affirm Mr. James's conviction for armed violence, vacate his convictions for possession of a controlled substance and AUUW, and correct the mittimus to reflect both this change and, consistent with the trial court's oral pronouncements at sentencing, an award of 303 days of presentence credit, if eligible, for sanitation work performed by Mr. James while he was incarcerated.

¶ 4 BACKGROUND

¶ 5 On July 15, 2014, the trial court conducted voir dire of potential jurors. Before beginning, the court discussed with counsel its typical process. During that discussion, the following exchange occurred between defense counsel and the court:

"MR. BEDI [defense counsel]: Do you ask about any strong feelings about guns one way or the other?

THE COURT: I am always afraid of that. Usually it involves—I ask, have you ever been a victim of a crime. What I do, if I get the sense if somebody has been, family member or victim [sic ], I streamline the question and I take the person in back so there is no other way to contaminate the rest of the jury. I don't want any statements or ideas to come out that might affect the rest of the jury. If we have any individuals that we see that they have a feeling towards guns I put it on the side. I try to minimize the ripple effect."

¶ 6 After the venire was seated, the trial court read the charges against Mr. James, including the charge of armed violence for possessing a controlled substance while armed with a firearm and the charge of AUUW in that he knowingly carried a firearm while not on his own land and without having been issued a FOID card. The court admonished the venire as a group that, among other things, they must follow the law as instructed, they must not arrive at any conclusions until all of the evidence was heard, independent investigation and the consideration of outside information were not permitted, and the court would ask them questions to ensure a fair and impartial trial.

¶ 7 The trial court then questioned the venire pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). The court began by asking each prospective juror individually the same series of preliminary questions: whether they or any of their family members or close friends had been victims of crimes, and, if so, whether they could nevertheless remain impartial; whether they knew any attorneys, judges, or police officers, and if so, whether they could remain fair and impartial regardless of these relationships; whether they would give each witness's testimony the same weight and level of credibility regardless of the witness's profession; and, finally, whether they could consider all of the evidence and apply the law as instructed by the judge in a fair and impartial manner.

¶ 8 These questions elicited responses relating to past experiences with firearms from several jurors. Edgar Ovalle, for example, stated that he and his mother owned a store and she was held up at gunpoint twice, approximately 18 years ago. However, Mr. Ovalle said that there was nothing about those events that would prevent him from being fair and impartial as a juror in this case. Hector Bacajol also stated that three years ago he was "robbed at gunpoint by the gangbangers in [his] neighborhood" and ten years ago his fiancée "was involved in a drive-by shooting in the neighborhood." Like Mr. Ovalle, Mr. Bacajol denied that there was anything about these experiences that would prevent him from being fair or impartial. Mr. James subsequently used two of his peremptory strikes to eliminate Mr. Ovalle and Mr. Bacajol.

¶ 9 Another potential juror, Dr. Alan Samarel, indicated that his father-in-law was robbed and shot in Manhattan approximately 15 years ago but said that there was "[p]robably not" anything about that event that would prevent him from being a fair and impartial juror. Dr. Samarel likewise told the court that there was "[p]robably not" anything about the fact that his "closest friend in Chicago" was a criminal defense lawyer who had talked to Dr. Samarel multiple times about his cases that would affect his impartiality. However, Dr. Samarel indicated that "[t]he issue of gun violence" was an aspect of his relationship with his uncle, who had been a police detective in the Bronx, that could affect his ability to remain impartial:

"Q. [The court:] Is there anything about your acquaintance with your uncle that would prevent you from being fair and impartial here today?

A. The issue of gun violence.

Q. But I am saying, the fact of him and his work, can you look at the facts of this case, apply the law that I instruct you on, assess these witnesses, and be fair and impartial?

A. I think so."

¶ 10 The court then conducted an in camera examination of Dr. Samarel in order to follow up on the nature of his views on gun violence:

"Q. Hi. Have a seat. So I want to inquire as regards to your ability. You are prejudiced?

A. Well, it has to do with the way you phrased the question. You have two people, trained observer, untrained observer sees something. I would believe the trained observer. So I consider the police trained observers. Policeman sees somebody—

Q. You would give a layperson less credibility? You are giving one person more credibility by the nature of their job—

A. Right.

Q. —as opposed to assessing them on the stand? That's prejudicial.

A. Right, because of the nature of their training and experience.

Q. Or is that not wanting to serve?

A. No.

Q. You indicated an opinion about gun violence.

A. Well, I do have an opinion about gun violence, right.

Q. Yes?

A. So.

Q. Are you of the presumption that most of the world accepts gun violence?

A. Accepts it or?

Q. Encourages it? Likes it?

A. No. I think it—

Q. Okay. So I don't understand. What would that view of not liking gun violence have to do with—there is no allegation of violence here other than possession of controlled substance or possession of a gun. There is no indication of agg [sic ] discharge or any type of aggravated discharge with a fire weapon. I am a little confused. I don't like gun violence, I don't like to see it. So what difference would that make it?

A. Well, the person is accused of possessing a firearm illegally though, right? This is kind of like a black-and-white situation, unless there is an illegal search or something like that.

Q. It's really not a black-and-white situation. It is looking at the facts, taking your common sense and looking at something and wanting to do your civic duty and obligation and serve and assess the case and the facts and the law that applies in this case.

A. Yeah, but it doesn't change my opinion the fact that, being a gun owner myself and knowing what goes into background checks and the whole thing.

Q. So you are not prejudiced against guns, you are just prejudiced against gun violence.

A. Illegal gun owners. I am prejudiced against, yeah, sure.

Q. The contrariness of this is amazing to me.

A. Well, so I am a very contrary person I guess.

Q. I think it is more so with not wanting to do with [sic ] jury service.

A. No.

Q. I think it does. I think you are indicating you are prejudiced or [sic ] prejudiced person?

A. I am being truthful with you.

Q. We all experience things in the city of Chicago, county of Cook, or North Shore, whatever, but the ability to put things aside and assess. As an educated individual who received an M.D., you should be able to look at the factual situation, apply the law as instruct it [sic ] to you, and do your civic duty in regards to jury duty.

A. All that being true, it doesn't change my feeling about how I answered that question.

Q. I understand. It is the lack of wanting to serve.

A. No, no, that's not it at all.

Q. I'm sorry. The record reflects."

Based on this exchange, the court excused Dr. Samarel and dismissed him for cause.

¶ 11 The jury was empanelled and the two-day trial began the same day.

¶ 12 In its preliminary instructions, the trial court warned the jurors that, throughout the trial, they would hear various evidentiary objections, explaining:

"When I sustain an objection you will hear me

...